U.S.: Less protection for gun rights

Posted Wed, October 19th, 2011 7:24 pm by Lyle Denniston

Asked by the Supreme Court for its views on the scope of a constitutional right to have a gun outside one’s home, the Obama Administration has tentatively suggested a standard that would mean that more restrictions on that right — but not really tight limits — would probably be upheld in court. In a brief filed Tuesday and now available, the U.S. Solicitor General said there was no reason to judge gun controls beyond the home by anything other than mid-level scrutiny — that is, less protection than gun rights advocates have been demanding.

A defense of a so-called “intermediate scrutiny” standard was not the central point of the brief, but emerged with some clarity as government lawyers responded to a new case involving a man convicted of having a loaded gun in his car in a national park — a place that the government argued is the kind of “sensitive place” that the Supreme Court has previously indicated could be put off-limits for guns. The case is Masciandaro v. U.S. (10-11212); the petition with the lower court opinion is here. After that petition was filed, the government opted not to reply to it. But on August 9, the Court asked for a response.

The case involves a Woodbridge, Va., man, Sean Masciandaro, who was convicted and fined $150 for having a loaded gun in his car while he was parked in a national park near National Airport, just across the Potomac River from Washington, D.C. His lawyers argued that the only difference between his case and the case that led the Supreme Court three years ago to recognize a personal right to a gun, under the Second Amendment, is that his possession occurred outside the home. Lower courts in general have been reluctant to extend that right to possession outside the home, awaiting further guidance from the Supreme Court.

“Despite the text of the Second Amendment,” Masciandaro’s petition contended, “federal and state appellate courts either expressly hold that the right to keep and bear arms ends at the doorway to the home or avoid deciding the constitutional question.” In Masciandaro’s case, the Fourth Circuit Court in Richmond, Va., simply assumed — but did not actually decide — that the Second Amendment may sometimes shield gun possession away from the home. It upheld his conviction and fine, even though the National Park Service regulation he was convicted of violating had by then been eased significantly.

U.S. Solicitor General Donald B. Verrilli, Jr., urged the Court to deny review, arguing that the change in the regulation had taken away the significance of this case for the future. But, more importantly, Verrilli challenged the need for the Court to adopt the most rigorous constitutional standard that can be applied — “strict scrutiny.” Usually, a law put to that test cannot survive, since the standard requires a very strong reason in public policy to justify a law. Strict scrutiny is the standard that the Court customarily uses to judge a law that is challenged as violating a “fundamental right” under the Constitution.

In the Court’s 2008 decision in District of Columbia v. Heller, the 5-4 majority ruled that the Second Amendment protected — as a “fundamental right” — an individual’s possession of a working and loaded gun for self-defense in the home. It refused, however, to specify which constitutional standard lower courts were to use in hearing sequel cases testing restrictions on the new personal right, leaving that to lower courts.

In the Fourth Circuit, the response was to apply two different standards: strict scrutiny to judge a law putting limits on the “core right of self-defense” in the home, but intermediate scrutiny when a law applied beyond the home. “As we move outside the home,” the Circuit Court said, “firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense.”

Urging the Supreme Court not to review that decision, the Solicitor General noted that, while lower courts have used some differing wording in judging new Second Amendment cases, “it is not clear that the standards differ in substance.” No lower court, the brief went on, has applied a standard tougher than middle level scrutiny when the restriction on guns applied outside the home.

Masciandaro’s lawyers, the brief contended, had made no attempt to justify the use of a strict scrutiny standard. Even if the Court agreed to hear this case, and rule that the Second Amendment right does apply outside the home, the brief contended, the lawyers for the Virginia man had not explained why a more restrictive standard than the Fourth Circuit had embraced should be applied.

The Court may not act on the case until after getting a reply from Masciandaro’s lawyers.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.